In the introduction to this part, we drew attention to two types of bodies that have been central to drafting and adopting constitutions. One, legislatures and constituent or constitutional assemblies, was discussed in the previous section. The other is constitutional commissions, committees, or similar bodies. These bodies have limited, specific functions related to the constitution-making process. They can vary from the important task of drafting the entire constitution to providing specialist advice (for example, on financial aspects of a decentralized system, or on the independence of the judiciary) to another body, which will prepare or adopt the draft constitution.

Here we use “constitutional commission” to refer to a body (other than a committee of the assembly, or “parliamentary committee”) that is formed for the purpose of preparing a draft constitution for consideration or adoption by another body. So we are drawing a distinction among three types of bodies that are charged with this responsibility:

special constitutional commissions/committees;

committees of a legislature; and

bodies with other responsibilities that are for a while given constitution-drafting responsibilities.

In this section we shall also look briefly at other committees and commissions that may have more limited roles.

Commissions are different from the legislature or the constituent assembly in at least three ways: function (they do not make final decisions on the constitution, being advisory), qualifications (primarily expert, rather than political or representative), and size (small, and therefore with different dynamics from assemblies). The effect of these differences is evident from the precise mandates, independence, and procedures of the commission and the assembly.

The range of tasks assigned to a commission will vary from process to process, but it may include:

carrying out (or coordinating and supervising) civic education;

collecting and analyzing public views;

preparing a draft constitution;

seeking and collecting public views on the draft constitution; and

organizing and being part of a constitutional assembly (a rare role for a commission, and an unsuitable one).

Whether to have a commission

There are two main issues here: first, what the general arguments are for and against having a separate commission as one of the elements in a constitution-making process, and second, what the complex of factors, some logical and some more a matter of tradition, is that leads individual countries to adopt or not to adopt this model. We are here talking of a commission, not of a committee of the legislature or assembly.

General rationale for independent commissions

Although the use of independent commissions, at least those with responsibility to prepare a draft constitution, is limited, it offers considerable advantages, most of which follow from its expert membership and political independence.

It can do considerable preliminary work for the deciding body, and for this reason the work of the assembly can be accomplished relatively quickly.

It can promote civic education and knowledge of the constitution-making process and constitutional issues.

It may be a more efficient body to receive and analyze public views and recommendations.

It brings appropriate constitutional experience to bear on public consultation and decisions that may be beyond the capacity or even the interest of most politicians.

There are greater chances that a commission will put the national interests above sectional interests than would a parliamentary committee. Because it is relatively more disinterested, it is also likely to be more effective in building a national consensus; its small size and expertise are more likely to allow a deliberative process than would an assembly. An analyst of the Brazilian process [1988], in which the constituent assembly, which started without a prior draft, had 559 members divided into 24 thematic committees, concluded that this made a coherent constitution nearly impossible, in particular given the weak presidency and party system.

There is also the advantage in the division of labor: one body to propose the draft and another to debate and adopt it, based on the notion that technical and professional expertise is required to draft, and a more political process is needed to adopt, the constitution.

There is considerable suspicion in most countries now of both the intentions and the competence of politicians, so an independent commission restricts choices open to assemblies and forces them to consider recommendations of a broader cross-section of society. A commission that is not independent, such as that of Afghanistan [2004], will often be chosen to represent government interests, thereby thwarting the benefits of a commission.

The chances that the commission will produce a draft are quite high, and in this way the process will be sustained despite acute differences between political and social interests.

An independent commission seen to be both neutral and expert, which discharges its responsibilities conscientiously and transparently, can legitimize both the process and the outcome.

Some weaknesses

It is also necessary to be aware of the drawbacks of a commission. It is likely that politicians may have more sense of ownership if the draft is prepared by them or on their behalf by a parliamentary committee. Learning opportunities for politicians may be lost, including those that come from hearing firsthand the views of the people during public consultation. There is the danger that the commission may isolate the constitution-making drafting process too much from the politics of the day. It may not succeed if there are significant differences that must be resolved directly by parties to the previous conflict. And as we have already noted, the commission can be manipulated by the government or other powerful interests. Although the work done by the commission may relieve the assembly of some of the load, the overall length of the process is likely to increase due to the overlong conduct of civic education, the receipt and analysis of public submissions—and the self-interest of the commissioners. And under pressure from the members of the public, who are unlikely to have a proper understanding of the appropriate function of the constitution, the commission may include recommendations that may be considered by many as unsuitable for a constitution, such as matters of policy. (See part 2.2.) A recent comparative study undertaken by the United States Institute of Peace of nineteen constitution-making processes observed that of those processes that used commissions, these bodies did not seem to produce a better result than those using a constituent assembly or parliamentary drafting committee with experts. However, this was a limited sample of cases.

Explaining the use of commissions

The prevalence in Africa of the use of commissions may be due partly to the resistance of politicians to political reform, and doubts about their competence. But it may be a response to the lack of an organized civil society, which results in an uninformed public and provides few channels for the expression of views. Few African countries have effective or ideological political parties that might play a leading role in the process (unlike in countries where the assembly process can be used, such as in Europe). Parties tend to represent only themselves as politicians in Africa, while in developed democracies, political parties represent social, class, regional, and economic interests—and in this way represent the larger society.

Committed to a participatory process, these countries find that an essential preliminary is civic education, best carried out by an independent commission. Moreover, traditional systems of governance, with which some people may be familiar, are not seen as relevant to a modern multitribal state. Foreign experiences become a source of ideas, mediated by an expert commission.

Important exceptions to the English-speaking African tradition are Namibia and South Africa. South Africa used no commission, perhaps because the conflict was too serious to be resolved in this way; direct negotiations between political parties were inevitable to break the deadlock that would have ensued otherwise. Multilateral talks that led the way forward and proceeded to draft what became an interim constitution, sometimes referred to as a roundtable process, also had elements of a commission, although it was dominated by political parties. In Namibia the absence of a commission can perhaps be accounted for by the active role of the United Nations and the need to negotiate with South Africa on independence, and also by several informal meetings and conferences having developed sufficient consensus to facilitate a formal process (under principles established by the United Nations Security Council).

An independent commission is more likely to be established if civil society is involved in the negotiations leading to principles and procedures for a constitution-making process. On their own, politicians are less likely to want an independent commission. Although one was proposed in Nepal [ongoing process], there was great resistance from key political parties. (It is likely that a commission might have greatly facilitated the process, especially given the rather unsophisticated and disorderly procedures followed in the constituent assembly.) In the former Communist states of Eastern Europe, the Communist and democratic leaders preferred direct negotiations, mostly in the form of roundtables. (See part 3.2.2 on roundtables.)

Designing an effective commission

Many of the advantages suggested above depend on the commission being expert and independent, and having enough resources for its tasks (which can be multiple). It is useful if the commission is also representative of different interests, without compromising integrity. However, these conditions are not often met. There have been allegations that most African commissions were not independent, either in their method of appointment or in operational autonomy. Various methods of appointment have been used, some more conducive to independence and competence (a competitive and transparent process), others less so. (In most countries the appointment has been by the executive or political parties.) The government and political parties have not been able to resist the temptation to influence or even instruct commissioners (especially in Afghanistan [2004]). Nor have the commissions always been sufficiently funded; some commissions had to secure funding from foreign sources to complete their tasks.

So to get the best results from the commission, it is best to ensure its independence. In some countries commissions are appointed by the executive under a general law for commissions of enquiry—legislation designed more for enquiries into administrative or policy issues than for constitution-making. Such a law gives the executive the power to define terms of reference, appoint and dismiss the commissioners, terminate the commission before its task is done, or refuse to publish its recommendations. These qualities have discredited commissions in Zambia and Zimbabwe, and complicated the goal of new, acceptable constitutions.

Another aspect of independence is the relationship of the commission to the legislature. Sometimes a legislature has a role in the appointment of the commission (often on the basis of party deals), but it is important that once appointed, commissioners should be left alone to do their jobs. In some countries, commissioners have to swear an oath that they will exercise their functions without any influence from political parties—and indeed may be required to sever relations with political parties. Parliament may appoint a select committee for liaison with the commission—and there will be need for this, but care must be taken that the select committee does not start to give instructions to the commission.

Similar issues arise in relation to funding and staffing. Enough funds should be provided, but, subject to the normal official procurement rules, the commission should be allowed to manage the funds. It should also be entitled to appoint its own staff, subject possibly to some general rules of inclusion, particularly in multiethnic states. In practice, commissions have seldom been allowed autonomy in all these matters.

Membership

In some countries, foreign experts have been appointed to enhance both the expertise and the independence of the commission (in Fiji [1997], the chair; in Kenya [2010], three of the nine members). Otherwise the issues are whether the commission should be expert (and exhibit what sort of expertise) or representative (at least of different aspects of the nation), or whether it should try to combine both features.

Normally the commission should be restricted to a small size (say from twelve to twenty-five or so, to ensure the range of skills and representation) so that there can be proper deliberations. But in Fiji [1997], the commission consisted of three, one a foreign actor (too small a commission, especially too small to be representative, including of women), whereas the commission numbered five hundred in Zimbabwe [2000] (too large).

Legal framework

Commissions in some countries are established by special legislation, sometimes enjoying constitutional entrenchment, which sets out the essential components of the whole process of constitution-making (as in Kenya in the 2000 and 2008 laws, although the 2000 law was not entrenched—a serious omission that was rectified in the 2008 process). In Britain, considerable use has been made of royal commissions, in some respects similar to commissions of enquiry mentioned above. Generally the royal commissions enjoy great prestige and independence, though their terms of reference are decided by the government. A major review of the British constitution was undertaken by a royal commission from 1969 to 1973, with a focus on devolution.

Many countries, especially within the common-law world, have laws about commissions of enquiry, which are ad hoc bodies appointed to inquire into a particular matter. Commonly a commission is appointed by the government (perhaps even personally by the president). It may comprise one or several members, and the commission will usually take evidence from people and produce a report—which it usually has to deliver to the person or body that appointed it. In many countries there is no guarantee that any report will be published. And the appointing authority may simply stop the proceedings at any time.

In 2001, Uganda set up a constitution review process using its Commissions of Inquiry Act. Zimbabwe used this vehicle for a constitutional review in 1999–2000 (it called it the “constitutional commission”). The large number of people appointed to the commission shows the flexibility of the institution. But one international NGO noted that under the act, the constitution was under the control of the president and potentially reversible by the government.

Many countries have permanent bodies with the mandate of considering proposals for reform of the law—whether those suggestions are generated by themselves or by the government (sometimes called the “law reform commission”). One advantage of making use of such a body might be that it already has a library, staff members, including researchers, and (often) legal drafters. On the other hand, law commissions usually face the issues of law and practice that concern lawyers, rather than issues with broad social and political implications. The Indian commissions have produced reports on the appointment of judges (at least twice), a constitutional bench in the Supreme Court, and the appointment of prosecutors. These issues all have constitutional dimensions, but they are narrow, and not the sorts of issues that are likely to divide a country in conflict.

In Malawi [1994], there is provision in the existing constitution for a law reform commission, but for reviewing its constitution Malawi formed a special law commission under that article, comprising lawyers and judges, church people, academics, and others.

The Indian National Commission to Review the Working of the Constitution was appointed pursuant to a government decision in 2000. It came under the Ministry of Law, and did not have independent research facilities, which were provided by the ministry but supervised by the commission. It had its own funding, which came through the ministry. The government appointed the members and set the deadline.

At various stages Nigeria has set up bodies by order of military governments, whether formally (by law) or by governmental order. One of these was the “fifty wise men” constitutional commission that proposed the shift to a United States-style system, adopted in 1979. The dynamics of constitutional reviews are different under military (and other undemocratic) regimes. Legal form matters relatively little when the government is not accountable. One commentator on the 1979 commission noted that the Nigerians were not told where the commission’s instructions came from, or why their parliamentary system had been changed to a presidential one.

Separate commission or committee of the legislature or assembly?

The type of drafting commission discussed in this section is similar in some respects to the committee often set up by the assembly or legislature in order to undertake some preliminary functions on its behalf, including public consultation and preparing a draft constitution.

The two types of bodies (commission and assembly committee) are different in important respects. The constitutional commission is based on assumptions about the virtues of a separate and independent body; the other is pragmatic, making up for deficiencies of the assembly as a large and deliberative body. There is an obvious difference in the composition of the two bodies (though in Zimbabwe [ongoing process], the parliament set up thematic committees that include those who are not members of parliament. (See part 3.1.2 on constitutional assemblies.) The status of the draft produced by a commission is often higher than that of a committee, over which the plenary has complete control. The commission may be a more effective body for civic education and public participation, but the committee may be more effective for transmission of public views to the assembly—often the ultimate decision-maker. The recommendations of the committee may carry more weight with the assembly, as they are often the result of negotiations between political parties represented in the assembly. The rules by which the committee makes rules (normally a majority) may be different from the rules binding the commission.

Box 39. Questions to think about when establishing a commission or committee

Does the mechanism being proposed allow for the members to use their expertise to deal with a wide range of issues, including politically sensitive issues, or is it dominated by lawyers or some other group?

Will the body be perceived as being representative of the people (and is that important for this body)?

Is it sufficiently independent?

Is the body able to invite and evaluate large numbers of public submissions?

What happens to its reports—are they necessarily published, and is there any machinery for ensuring that they are considered?

Are the body’s resources sufficient for the major exercise of constitution-making?

Can the work of the body be stopped at any time by those who set it up?

Is the body genuinely being used to advance reform, or is it really a mechanism for NOT doing something?

What happens to the commission draft?

The primary function of the constitutional commission is to prepare a draft constitution for consideration and adoption by another body. In many countries a commission could claim to have reflected the people’s preferences more accurately than politicians do. Generally, people place importance on values and principles, and politicians on institutions. There is some danger that values and institutions may not converge, creating internal inconsistencies and tensions. So it is desirable that commission drafts should be protected to some extent from ill-informed changes. One way this might be achieved is if the commission establishes a good rapport with the people and wins their confidence. Perhaps if the Fiji commission [1997] had involved the people to a greater extent than it did, the parliamentary committee would have found it harder to resist its recommendations; as it was, the committee made several changes to the draft, driven by political expediency rather than by principle, so that the document became a bit incoherent. Another way is to make it hard to change the draft; see the note on Uganda and Kenya below.

Most often a commission’s draft goes to a constitutional assembly or the legislature. But most unusually, the interim charter of the Somali Republic (2004) provided that the draft of an independent commission would be referred directly to a referendum. Generally it is thought wise to provide for some political “vetting” of the draft (if only because of the need for party acceptance).

Even when the draft goes to an assembly or legislature, there is no standard pattern. In Kenya [2005], the draft was to be debated by the public before the National Constitutional Conference began its deliberations. The draft approved by the conference was to be submitted to the national assembly “for enactment within seven days.” (Since the constitutional provision on constitutional amendments applied, enactment would have to be by a two-thirds vote, and parliament could reject, but not amend, the draft.) A further twist was added by a dubious decision of the constitutional division of the high court that a referendum was also needed. A referendum held a year later clearly rejected a draft that the legislature had changed in some fundamental respects from the conference’s draft.

The route to the draft in Kenya [2010] was even more complicated. The expert committee, whose principal task was to produce a “harmonized” or consensus draft, had to submit this draft to the public for debate and discuss it with a reference group (consisting of civil society actors). On these bases, it had, if necessary, to revise the draft. The revised draft was to be submitted to the parliamentary select committee for comments (the law was somewhat unclear what to do with the committee’s comments, but the expert committee took the view that, on contentious issues, it had to accept them). After further revisions, the draft was taken to the legislature, which could propose amendments by a two-thirds vote. Finally the draft was submitted to a referendum and was adopted.

In Uganda [1995], the draft went to a constituent assembly elected as such; the commission’s draft could be amended only by a two-thirds vote, and the assembly had the option to refer any matter for final resolution to a referendum, but a referendum as such was not required for approval. In Eritrea [1997] the draft was submitted for public debate, and then sent to the national assembly, which could amend it. It then underwent another round of public debate before it was put to the public in a referendum. In Zambia [2010] it went to the president and the cabinet, which issued a white paper (rejecting many provisions), and the revised draft was submitted to and approved by the legislature. The president of Zimbabwe made major changes to the draft (although the commission was largely handpicked by him). It then went to a referendum in 2000, where it was rejected.

In Afghanistan [2004] the commission was not independent and the draft was heavily revised by the transitional government through a process of horse trading among political leaders, warlords, and clan leaders. It was then submitted to the Constitutional Loya Jirga established to approve the draft. Further horse trading and demands made by the United States and the United Nations, as well as by women and minorities, resulted in further significant changes to some parts of the draft. The government made changes even after the draft left the Constitutional Loya Jirga.

In Fiji [1997] the commission’s draft went to parliament, which referred it to a joint committee of both legislative houses. There was a period of public debate before the committee began deliberations, but it was not officially organized and did not reach many people. The proceedings of the committee were secret even from the expert advisers to the parties.

In Iraq [2005] the draft produced by the parliamentary commission (which was extended to include some Sunni nonparliamentarians, as few were elected to the assembly due to a Sunni boycott) was ignored by party leaders who, under pressure from the United States, negotiated fundamental decisions and completed the draft in secrecy.

This account shows that the drafts created by commissions have an uneven record of success. This assessment assumes that the aim of the drafts is that they be adopted with as little change as possible. But it can be argued that the aim of the draft is to start or reinforce a nationwide debate on a set of proposals, provide some orientation or direction, or identify crucial issues on which decisions must be made through democratic procedures. And commissions perform other functions besides producing a draft. They have to conduct civic education with the people and increase public awareness of democratic values and the capacity to participate in national affairs.

Other, specialist, bodies

Commission-type bodies have been used to perform specific tasks short of producing a draft. Their role may be to produce ideas that may streamline specific proposals. A two-person committee was set up in Papua New Guinea to propose details of a provincial government; likewise in South Africa [1996], the assembly was helped by experts to design a provincial government. The South African assembly was also assisted by a panel of constitutional experts to clarify interpretations of proposed provisions or to resolve differences, and another body enabled it to draw in a greater number of the more recalcitrant Afrikaaners into the process. The Eritrean commission was assisted throughout by a fourteen-member board of foreign experts, lawyers, historians, political scientists, and anthropologists. Other areas where assistance has been sought from specialist bodies include fiscal federalism, boundary adjustments, and the electoral system. A special kind of commission was used for the independence constitution of Malaysia—composed entirely of foreign experts, in the search for an objective analysis of problems facing Malaysia and looking for a consensus. (See part 3.4.1.) In part 2.5.2 on dealing with divisive issues, we discuss briefly the formation of special bodies to address particularly divisive issues in a constitution-making process.

Conclusions

It is perhaps less likely that a commission would be established when there are effective and representative political parties, which may prefer to negotiate the principles and procedures for review (most likely through the legislature). A parliamentary committee may then be used to negotiate the detailed provisions. When parties lack clear policies and the degree of public support is uncertain, or when the divisions are ethnic or sectarian, a commission may provide both direction and ideas, and help develop some sort of consensus. It can also give visibility to the process and promote public debates. Its civic education role has often been most significant (as evidenced by constitution-making processes in Uganda [1995], Eritrea [1997], and Kenya [2005; 2010]). A commission is perhaps the most effective way to engage the public. Sometimes it has given shape to the process through its own dynamics, and had played a critical role in the management of the entire process (as in Kenya [2005]). Commissions on special topics, such as fiscal, environmental, electoral, and decentralization issues, often outside the knowledge of traditional constitutional experts, can make important contributions and help constitution-makers avoid errors that may later turn out to be quite costly or administratively problematic. Although it is not indispensable, the use of commissions should be considered by those responsible for designing the process.